BAC16 v Minister for Immigration

[2016] FCCA 3471

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAC16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3471

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Applicant: BAC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 886 of 2016

Judgment of: Judge Riethmuller

Hearing date: 16 December 2016

Date of Last Submission: 16 December 2016

Delivered at: Melbourne

Delivered on: 16 December 2016

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 886 of 2016

BAC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal.  The applicant is a citizen of Sri Lanka.  He came to Australia and applied for a protection visa in February 2013.  A delegate refused to grant the visa, and he sought review by the Tribunal. 

2. The applicant appeared before the Tribunal with the assistance of an interpreter.  The applicant had also been assisted by a registered migration agent.  The Tribunal had regard to his application.  The Tribunal considered his application, which was based upon his involvement in politics and having formed a fishermen’s society.  The Tribunal considered the evidence and found that they did not accept that he was a truthful witness.

3. The reasons for concluding that the applicant was not a truthful witness are set out at p.8 of the decision, where the Tribunal said:

   51. For the following reasons I did not find the applicant to be a truthful or credible witness.

   52. The applicant frequently had difficulty answering simple questions and providing a coherent account of his involvement with the UNP during the hearing. While I acknowledge that it is not always possible to recall past events accurately particularly in stressful situations such as a Tribunal hearing, after considering all of the evidence, I do not accept that the applicant’s difficulty remembering events was the result of poor memory or stress. I believe he had difficulty providing evidence because he concocted most of his claims and could not recall his earlier evidence.

   53. First and most significantly, during the hearing the applicant claimed that he was involved in about three provincial election campaigns in support of a UNP candidate called Mendis between 2010 and 2012. He claimed that these elections were held annually. Provincial council elections are not held annually and none were held in the North West Province between 2010 and 2012. According to the Sri Lankan Department of Elections website Provincial Council elections were held in Puttalam in February 2009 and September 2013. ( Clearly the applicant cannot have been working for a candidate in Provincial Counsel elections between 2010 and 2012. In assessing the applicant’s claims I have considered the possibility that he may have been involved in some other elections held in area and have been confused regarding the purpose of the campaign. However, I do not believe that someone who was actively involved in politics would be unaware of the nature of the elections in which he was involved.

   54. Secondly, ever if I ignored this major, indeed fatal, problem with the applicant’s evidence, there are significant inconsistencies in his evidence.

   55. During his entry interview the applicant said that he first became actively involved with the UNP during Provincial Counsel elections in 2011. In his protection visa application he said that he became an active supporter of the UNP in mid-2010 and began to work for Mendis in January 2011. At the hearing he stated that he had become involved with the UNP in 2011 and said that he had been involved in three Provincial Council campaigns supporting Mendis and said that these campaigns were held annually. When I pointed out that this did not seem possible, he said that he had said that said that he had begun to work for Mendis in early 2010 and the most recent election was held in February 2012.

   56. During the hearing the applicant first said that Mendis was a current member of the Provincial Council, then said that he had been elected to the council in 2010, but lost an election in early 2012, then said he did not know whether Mendis was currently a council Member. He also stated that Mendis had lost all of three elections in which he (the applicant) was involved. When asked to confirm that he had not been involved in the 2010 election won by Mendis, the applicant responded that he was involved in all of Mendis’ campaigns and Mendis had lost all of them.

   57. At the interview the applicant stated that he had been hit and injured only once and said that was during the first campaign in which he was involved. If elections were held annually as claimed by the applicant this must have occurred in 2010 or earlier. This is at odds with the information in in his protection visa application when he said they was attacked while putting up posters in October 2011.

   58. After considering all of the evidence, I accept that the applicant supported the UNP prior to his departure from Sri Lanka, however I do not accept that he was involved in any election campaigns or any other activities in support of the UNP or that he suffered any harm as a result of his support for the UNP prior to his departure from Sri Lanka. I find that he concocted these claims to provide a basis for his application for protection in Australia.

4. The Tribunal ultimately concluded that the applicant was not entitled to a protection visa, after considering the Convention grounds and the complementary protection provisions.

5. The applicant’s grounds for judicial review are as follows:

   1. The interest of the Applicants is affected by the decision given by the Second Respondent on 30 March 2016.

   2. That the Second Respondent failed/ignored to consider Section 424A(1) of the Migration Act 1958.

   3. The Second Respondent acted without or inexcess of jurisdiction and/or identified wrong issues, asked wrong questions, relied on irrelevant material or ignored relevant material.

   4. The Applicant was denied procedural fairness.

   5. The Second Respondent failed to review and consider the Application for protection as per the Migration Act.

6. It appears that these are general grounds that were drawn by a legal aid lawyer to assist the applicant to file his application.  The applicant was not able to identify any specific circumstances of his case that came within these grounds. 

7. In the applicant’s supporting affidavit, he set out two further matters that may have indicated a ground for review.  They are as follows:

   13. The Tribunal did not take in account the current country situations in relation to my claims. People deported to Sri Lanka are brutally assaulted and imprisoned by the authorities for illegally fleeing the country. I fear such treatment.

   …

   15. The Tribunal also failed to consider whether it was reasonably practicable to relocate considering my situation,

8. At the hearing before me, the applicant was not able to identify any particular piece of information that the Tribunal did not have regard to.  The applicant said that he was fearful of returning to Sri Lanka.  It appears that this paragraph is seeking merits review rather than judicial review.  The claim in paragraph [15] is that the Tribunal failed to consider whether or not he could relocate.  As the Tribunal considered that there was not a real risk that he would face significant harm, there was no need for the Tribunal to consider whether or not he could relocate to avoid that harm. 

9. The applicant raised today a complaint that he thought his hearing before the Tribunal was very quick.  There is no transcript or tape recording of the hearing in evidence.  From reading the Tribunal’s reasons, it seems clear that there must have been considerable discussion at the hearing.  The Tribunal outlines what occurred at the hearing at paragraphs [31] to [50] of their decision. 

10. In the circumstances, I am not persuaded that the applicant has shown a ground for judicial review. 

11. In therefore dismiss the application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 9 March 2017